Speagle v. State

• Decision Date: 26 November 1980
• Docket Number: No. 52093,52093
• Citation: 390 So.2d 990
• Parties: Jimmy SPEAGLE v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 990

390 So.2d 990

Jimmy SPEAGLE v. STATE of Mississippi.

No. 52093.

Supreme Court of Mississippi.

Nov. 26, 1980.

William B. Sullivan, Laurel, for appellant.

Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

WALKER, Justice, for the Court:

Jimmy Speagle appeals from his conviction in the Circuit Court of Jones County for the crime of incest, as defined by Mississippi Code Annotated section 97-29-5 (1972), for which he was sentenced to serve a term of ten years in the penitentiary.

The evidence on which the conviction rests was conflicting and thus presented a question for the jury to resolve. At the conclusion of all the testimony, the defense moved for a peremptory instruction, which the lower court correctly declined to give. Peremptory instructions should be refused if there is enough evidence to support a verdict. Warn v. State, 349 So.2d 1055 (Miss.1977). The prosecuting witness testified in sufficient detail that the specific act of intercourse described in the indictment occurred on the date alleged, and this testimony was corroborated, in part, by other testimony.

The defendant's principal assignment of error is that the lower court erroneously refused to grant him a continuance. He contends that his attorney needed more time to prepare for trial. The indictment was returned against Speagle on November 6, 1979. He appeared before the court on November 7, 1979, and stated that he had employed a lawyer. He was arraigned on November 12, 1979, and was represented by counsel, Mr. Ed Stevens, at that time. He pleaded not guilty and the case was set for trial on November 20, 1979. On November 19, 1979, Mr. William Sullivan, then representing the defendant, filed a motion for continuance, which was denied.

One of the primary complaints in the motion was that counsel had not had an opportunity to interview the prosecuting witness. In ruling on the motion, the court directed the district attorney to advise counsel of the whereabouts of this witness. The district attorney indicated that he would do so in the next fifteen minutes, and the record indicates that the prosecutor made his witness available that very day, and that defense counsel spoke with the witness at length before the trial. He cross-examined her at length during the trial and he presented several witnesses to contradict her testimony. There is, on this record, no indication that any injustice resulted from the denial of the continuance.

Mississippi Code Annotated section 99-15-29 (1972) provides that the granting of a continuance is largely in the discretion of the trial judge and refusal to grant a continuance will not be grounds for a reversal unless that discretion has been abused, and the court is satisfied that an injustice has resulted therefrom. Having carefully reviewed the record, we cannot say that the trial court abused its discretion in overruling the motion for a continuance. See Shaw v. State, 378 So.2d 631 (Miss.1979); Brown v. State, 252 So.2d 885 (Miss.1971).

There was also alleged in the motion for a continuance that the accused had substituted counsel on or about November 14, 1979. In Ladnier v. State, 273 So.2d 169 (Miss.1973), we pointed out that the voluntary substitution of counsel by a litigant during the course of trial is not, of itself, grounds for a continuance. The same can be said for the voluntary substitution of counsel prior to trial. In sum, the record does not indicate that any injustice resulted from the failure to grant a continuance.

Speagle also assigns as error the lower court's failure to order a blood test of the prosecuting witness. The purpose of the requested blood test was to ascertain whether the prosecuting witness was actually the defendant's blood relative.

The appellant has cited no controlling authority to support his proposition. In light of the fact that he has never denied that the girl was his daughter and, in fact, admitted on direct examination that she was his daughter, we do not deem it necessary to decide the question whether a defendant in an incest case may require the prosecuting witness to submit to a blood test. On this record it is clear that it was not an abuse of discretion to deny the request for a blood test.

The appellant also alleges the lower court erred in allowing testimony relative to other prior instances of sexual misconduct. The prosecuting witness was permitted to testify that other acts of intercourse had taken place during the month preceding July 28, 1978, and that these acts had occurred about three or four times a week. This testimony was admissible. Davis v. State, 367 So.2d 445 (Miss.1979); Brooks v. State, 242 So.2d 865 (Miss.1971).

In Brooks v. State, supra, we considered the same contention in a rape case. There, the defendant argued his confession was inadmissible because it showed that defendant was guilty of other similar or related offenses at times prior to the rape. This Court held the confession was admissible, overruling English v. State, 206 Miss. 170, 39 So.2d 876 (1949), stating as follows:

The general rule is that in a criminal prosecution evidence which shows or tends to show that accused is guilty of the commission of other offenses at other times is not admissible, unless the other offenses are reasonably connected with that for which he is on trial. There is a substantial number of these exceptions. Evidence of other crimes is admissible to prove identity of the defendant, scienter or guilty or criminal knowledge, criminal intent or purpose, motive, a plan or system of criminal action where a continuing offense is charged, or where other crimes form a part of the res gestae. Lee v. State, 244 Miss. 813, 146 So.2d 736 (1962); 29 Am.Jur.2d Evidence §§ 320, 321 (1967). The "acid test is its logical relevancy to the particular excepted purpose or purposes" for which the evidence of prior offenses is sought to be introduced, and the considerations justifying the reception of evidence of other similar crimes has been held by some courts to be peculiarly applicable in prosecutions for sexual offenses." Id. § 321.

Accordingly, evidence is generally held to be admissible which shows or tends to show prior offenses of the same kind committed by defendant with the prosecuting witness. The courts assign various reasons for the admission of this evidence such as corroboration of the offense charged, to show the intimate relation between the parties, the lustful disposition of defendant toward the prosecuting witness, and the probability of his having committed the offense charged. An exhaustive annotation in 77 A.L.R.2d 841, 852 (1961), discusses many cases from other jurisdictions upholding this rule. (242 So.2d at 869).

The same annotation lists several incest cases from other jurisdictions holding that evidence which shows, or tends to show, that the defendant committed the same offense upon the same female on an occasion prior to the offense for which conviction is sought is admissible for the purpose of showing the...